What happens when parental opinion is divided?

When parents have gone their separate ways, reaching an agreement about the best way forward for their child can be problematic and incredibly…

For most parents the biggest decision they will have to make on behalf of their child is which school they will attend. For some however, life is not quite so straightforward and it is necessary to make life changing decisions on behalf of their son or daughter. They may, for example, have to decide whether to consent to life saving, but risky, medical treatment. Such decisions are difficult to make at the best of times even when the parents remain in a civil and harmonious relationship and are able to discuss matters in a civil and amicable manner. When however the parents have gone their separate ways, sometimes after a very acrimonious split, reaching an agreement about the best way forward for their child can be problematic and incredibly challenging.

We all like to think that if a situation arose whereby our child’s safety or well being was in jeopardy we would throw down the gauntlet and instinctively make the right choices and decisions on behalf of our son or daughter. Sometimes, a parent’s relationship towards the other parent can cloud their judgement and prevent them from putting the best interest of their child first. Or, more often than not, both parties believe that they are putting their child’s interests first, but disagree on how that is achieved.

In situations where parents cannot agree on a particular matter, it is open to either one of them (assuming that both parents have parental responsibility for the child) to apply to the court for what is know as a Specific Issue Order. Under Section 8 of the Children Act 1989 a Specific Issue Order is “an order giving directions for the purpose of determining a specific question which has arisen or which may arise, in connection with any aspect of parental responsibility for a child”.

The court can then determine the issue in question and may make a wide range of orders dealing with matters such as:

Whether a child should have a particular medical treatment or operation.

Whether the child should be permitted to change their name.

Which school the child should attend.

In certain circumstances the child themselves can bring an application and invite the court to determine a fundamental issue concerning their future.

This is exactly what happened in the widely reported case of re JS (disposed of body)(2016) EWHC 2859 (FAM). In this case a 14 year old girl referred to as JS was diagnosed with terminal cancer. Naturally at such a young age JS did not feel ready to die and she therefore took it upon herself to research cryonics on the internet. This involves the freezing of a dead body in the hope that resuscitation may be possible at some point in the future.

The science behind cryonics is speculative, controversial and as yet untested. Consequently the Judge hearing the case made it abundantly clear neither he, nor the medical trust caring for JS, were condoning or endorsing the use of cryonics. Rather, his role, as he saw it, was to select the person best placed to make decisions on behalf of JS following her death.

JS’s parents were divorced and the Judge described their relationship with one another as “very bad”. The father had not had any face to face contact with JS since 2008 and only found out about her medical condition via a distant relative.

Unfortunately, JS’s parents were unable to agree about what should happen following JS’s death. Her mother decided to support JS in pursuing the execution of her wishes. However her father was quite understandably more sceptical about the whole process. Ultimately however the father indicated that he was prepared to respect JS’s wishes.

After considering the case in detail including the practicalities of granting the child’s wishes the Judge concluded that JS should have the right to be cryrogenically frozen after death and he made an order placing the arrangements after her death in the hands of her mother. He acknowledged that this would inevitably exclude the father from the arrangements and would also deprive him of the ability to view her body following her death and say his goodbyes. He indicated however that he viewed this as the best way to resolve the matters, and emphasises the court's role in parental disputes of this nature.